Compton v. Ubilluz, 2-03-0383.

• Decision Date: 23 June 2004
• Docket Number: No. 2-03-0383.,2-03-0383.
• Citation: 811 N.E.2d 1225,285 Ill.Dec. 346,351 Ill.App.3d 223
• Parties: Annette COMPTON, Plaintiff-Appellant, v. Rodrigo UBILLUZ, Fred Nour, Central Du Page Hospital, and Central Du Page Health, Defendants (Neuro-Diagnostic Testing Centers, P.C., n/k/a Neuro-Spinal Center, Ltd., Defendant-Appellee).
• Court: United States Appellate Court of Illinois

811 N.E.2d 1225

351 Ill.App.3d 223

285 Ill.Dec. 346

Annette COMPTON, Plaintiff-Appellant, v. Rodrigo UBILLUZ, Fred Nour, Central Du Page Hospital, and Central Du Page Health, Defendants (Neuro-Diagnostic Testing Centers, P.C., n/k/a Neuro-Spinal Center, Ltd., Defendant-Appellee).

No. 2-03-0383.

Appellate Court of Illinois, Second District.

June 23, 2004.

Edward J. Walsh Jr., Thomas L. Knight, Bradley N. Pollock, Walsh, Knippen, Knight & Diamond, Chtd., Wheaton, for Annette Compton.

David J. Cahill, Amy R. Miller, Swanson, Martin & Bell, Lisle, for Rodrigo Ubilluz.

Robert H. Smith, Scott R. Wolfe, Lowis & Gellen, Chicago, for Fred Nour.

Kevin J. Vedrine, Barbara M. Prohaska, Cunningham, Meyer & Vedrine, Wheaton, for Central DuPage Health and Central DuPage Hospital.

Brian J. Hickey, Jennifer A. Bollow, Douglas S. Strohm, Naperville, Richard A. Barrett Jr., Chicago, Cassiday, Schade & Gloor, for Neuro-Diagnostic Testing Centers, P.C.

Presiding Justice O'MALLEY delivered the opinion of the court:

Plaintiff, Annette Compton, appeals the order of the circuit court of Du Page County granting the motion of defendant, Neuro-Diagnostic Testing Centers, P.C. (n/k/a Neuro-Spinal Center, Ltd.), to dismiss plaintiff's claims against it pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2002)). Specifically, the trial court held that plaintiff's allegations against defendant in her second amended complaint did not relate back to her original complaint, pursuant to the current version of section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 2002)). Plaintiff appeals, contending that the previous version of section 2-616(d) applies to her second amended complaint and requires the reversal of the trial court's order. We reverse and remand.

The following facts are drawn from plaintiff's second amended complaint and related motions. In 1997, plaintiff came under the care of Dr. Rodrigo Ubilluz for her complaints of numbness and tingling in her hands and feet. Between August 27, 1997, and September 2, 1997, because of the progression of her symptoms, plaintiff was hospitalized at Central Du Page Hospital. While she was hospitalized at Central Du Page, Dr. Ubilluz ordered several blood tests, including a B-12/Folate test. A vitamin B-12 deficiency can cause the neurological symptoms that plaintiff was experiencing. On September 3, 1997, Central Du Page's lab reported the results of the B-12/Folate test to Dr. Ubilluz. The results of the B-12/Folate test revealed that plaintiff's serum B-12 levels were critically low. Dr. Ubilluz denied that he received the B-12/Folate test results from Central Du Page. Dr. Ubilluz did not properly diagnose plaintiff's condition or otherwise order or administer the proper treatment for it. Plaintiff visited Dr. Ubilluz eight times after her discharge from the hospital. At none of these visits did Dr. Ubilluz mention the B-12/Folate test results. Plaintiff last visited Dr. Ubilluz on January 13, 1998.

Plaintiff's condition continued to deteriorate to the point where she was unable to walk. On June 9, 1998, plaintiff consulted with Dr. Steven Lewis. Dr. Lewis diagnosed plaintiff's condition as a vitamin B-12 deficiency. Before July 14, 1998, plaintiff did not know how long she had experienced the vitamin B-12 deficiency, that Dr. Ubilluz had tested her for the deficiency, or that the result of the B-12/ Folate test had been abnormal.

On June 6, 2000, plaintiff filed her original complaint naming Dr. Ubilluz and others as defendants. Plaintiff alleged that Dr. Ubilluz failed to obtain the results of the B-12/Folate test and, thereafter, failed to properly treat plaintiff's condition. On June 14, 2000, Doreen Roman accepted a service of plaintiff's complaint on behalf of Dr. Ubilluz. The deposition testimony of Barbara Reggilio indicated that Roman was an employee of defendant and Ubilluz at the time she accepted service of plaintiff's complaint.

Plaintiff first became aware that Dr. Ubilluz was an agent or an apparent agent of defendant when Reggilio was deposed. Plaintiff's previous investigation had shown that Dr. Ubilluz was acting as an independent neurologist while he was treating plaintiff. Plaintiff's medical records, obtained from Dr. Ubilluz, did not reference defendant. Dr. Ubilluz also testified in his discovery deposition that he was an independent physician, as well as answered written interrogatories that he was an independent contractor. On May 14, 2002, after learning about the relationship between defendant and Dr. Ubilluz, plaintiff filed her second amended complaint, which for the first time included allegations against defendant.¹

Defendant filed a motion to dismiss plaintiff's second amended complaint, arguing, pursuant to sections 13-212 and 2-619(a)(5) of the Code, that plaintiff had not filed it within the time provided by law. 735 ILCS 5/13-212, 2-619(a)(5) (West 2002). Defendant contended that the four-year statute of repose had expired before plaintiff filed her second amended complaint, and that this barred plaintiff from adding defendant as a party to this cause. Plaintiff raised the relation-back doctrine embodied in section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 2000)), as it existed before its January 1, 2002, amendment. Defendant argued that the amended version of the relation-back statute applied, not the version in force at the time plaintiff filed her original complaint. Defendant analyzed plaintiff's claim under the terms of the amended relation-back statute (735 ILCS 5/2-616(d) (West 2002)), and concluded that plaintiff did not satisfy the requirements enumerated therein. On October 31, 2001, the trial court held that the amended version of the relation-back statute applied to plaintiff's second amended complaint and dismissed with prejudice plaintiff's claim against defendant.

Plaintiff filed a motion to reconsider, contending that, under the terms of section 2-616(f) of the Code (735 ILCS 5/2-616(f) (West 2002)), the previous version of the relation-back statute (735 ILCS 5/2-616 (d) (West 2000)) applied to her claim. The trial court accepted plaintiff's reading of section 2-616(f), yet it nevertheless held that the amended version of the relation-back statute applied to plaintiff's claim. On February 26, 2003, the trial court denied plaintiff's motion to reconsider.

Plaintiff filed a second, emergency motion to reconsider, and on March 21, 2003, the trial court denied it. Plaintiff filed her timely notice of appeal on March 27, 2003.

On appeal, plaintiff contends that the trial court erred in dismissing her claim against defendant pursuant to section 2-619(a)(5) of the Code. Section 2-619(a)(5) of the Code allows for a cause of action to be dismissed if the action was not commenced within the time limited by law. Peetoom v. Swanson, 334 Ill.App.3d 523, 526, 268 Ill.Dec. 305, 778 N.E.2d 291 (2002). A section 2-619 motion to dismiss admits all well-pleaded facts and the reasonable inferences to be drawn from those facts; additionally, it admits the legal sufficiency of the complaint but asserts the existence of an affirmative matter to avoid or defeat the claim. Peetoom, 334 Ill.App.3d at 526, 268 Ill.Dec. 305, 778 N.E.2d 291. We review de novo the trial court's decision on a section 2-619 motion to dismiss. Peetoom, 334 Ill.App.3d at 526, 268 Ill.Dec. 305, 778 N.E.2d 291.

The first issue we must address is which version of the relation-back statute to apply. The amended version of section 2-616(d) (currently in force and applied by the trial court) provides:

"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under Supreme Court Rule 103(b) [(177 Ill.2d R. 103(b))], received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her; and (3) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended." 735 ILCS 5/2-616(d) (West 2002).

The previous version of section 2-616(d) (before the January 1, 2002, amendment, and which plaintiff contends should have been applied) provided:

"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served

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